National security law: decisions of new committee in HK not above judicial review, legal expert says

14-Jul-2020 Intellasia | South China Morning Post | 6:02 AM Print This Post

Hong Kong courts can scrutinise the new national security committee, a constitutional law expert has said, putting him at odds with the chief executive who says the panel’s work lies beyond the scope of judicial review.

The committee was established by the national security law top Chinese officials imposed on Hong Kong late last month that targets acts of secession, subversion, terrorism and collusion with foreign forces. But the interpretation of the wording of some provisions has sparked debate between officials and experts.

Albert Chen Hung-yee, a member of the Basic Law Committee that advises Beijing on matters relating to the city’s mini-constitution, noted the law set out the duties and functions of the committee, which is chaired by Hong Kong’s leader and includes ministers and heads of disciplined forces.

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The Committee for Safeguarding National Security is required to “formulate policies”, “advance the development of the legal system and enforcement mechanisms” and “coordinate major work and significant operations”.

Chen took aim at the provision that states “decisions made by the committee shall not be amenable to judicial reviews”.

“Not amenable to judicial reviews does not mean everything the committee has decided will not be judicially reviewable,” he told a legal forum co-organised by the law faculty at the University of Hong Kong (HKU) and the LawyersHK association on Saturday.

That view puts him at odds with Chief Executive Carrie Lam Cheng Yuet-ngor, who on Tuesday said the committee was required under the new law to not reveal its work, thus taking its decisions beyond the scope of judicial review.

But Chen, a professor at HKU, disagreed, saying: “The court has the power to determine if the committee has gone beyond those powers.”

Another controversial aspect of the law is the powers granted to police laid out in a document released hours after the committee met for the first time on Monday. Officers can bypass judicial approvals when intercepting communications or searching premises under a variety of circumstances.

Lam has said the implementation document cannot be challenged.

“I am not a professional in the legal sector, but from my understanding, it is not judicially reviewable,” she said.

Again, that statement was challenged at the forum. Pro-Beijing heavyweight Maria Tam Wai-chu, the deputy director of the Basic Law Committee, said whether police officers had exceeded their powers was subject to court scrutiny.

Chen noted the law gave police the power to ask internet service providers to remove messages deemed to run afoul of the new law. But if the provider believed the request was unwarranted, it could file a court action to challenge the request, he said.

Tam also revealed that Luo Huining, the director of Beijing’s liaison office in Hong Kong and who has been appointed an adviser to the committee, would only provide recommendations and would “not take part in any voting”.

But Lau Siu-kai, vice-president of the Chinese Association of Hong Kong and Macau Studies think tank, said Luo was a high-ranking official and would help deliver Beijing’s messages, as well as coordinate work between the local government and Beijing’s Office for Safeguarding National Security in Hong Kong.

Senior political lecturer Ivan Choy Chi-keung, from Chinese University, questioned whether the committee could have its own decision-making powers merely due to Luo’s presence.

Barrister Anson Wong Yu-yat earlier told the Post that while launching a judicial review was a way to seek redress, the move could be costly and prompt Beijing to issue an interpretation of the legislation, which was undesirable.

Speaking at a separate forum, Lam addressed changes to the curriculum under the national security law. She said schools were facing problems that were political in nature, rather than educational. She labelled two universities “hotbeds for violence” during social unrest that gripped the city last year.

She was referring to Chinese University and Polytechnic University, where radical demonstrators took over the campuses last November for days and faced off against police in some of the worst violence of the anti-government movement. Lam also pointed to other occasions when secondary school students formed human chains across the city and chanted what she called pro-independence slogans.

Lam accused “anti-government forces” of penetrating schools as early as 2012 when a push to introduce a national education curriculum was met with wide opposition. Negative views of

Beijing and the local authorities had crept into textbooks, classrooms and exam questions, she said.

She told the audience that included Tan Tieniu, deputy director of the liaison office, that her administration already had plans to enhance national education in schools, as the new law required.

Secretary for Education Kevin Yeung Yun-hung pledged to “strengthen students’ knowledge of national affairs, Chinese culture, and the [Chinese] constitution as well as Basic Law”.

In recent months, the Education Bureau has targeted what it views as a dangerous strain of political expression by students. It banned Glory to Hong Kong, the anthem of the protest movement, in schools, saying it had a political undertone. The bureau has also said complaints had been filed against some teachers for bringing political views into the classroom, and it was following up on the cases.

In May, it made an unprecedented request to the local exam authority to withdraw a test question that was deemed offensive to China.


Category: Hong Kong

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